Com. v. Sousa

• Decision Date: 16 October 1992
• Docket Number: No. 92-P-187,92-P-187
• Citation: 33 Mass.App.Ct. 433,600 N.E.2d 1012
• Parties: COMMONWEALTH v. Americo SOUSA.
• Court: Appeals Court of Massachusetts

Page 1012

600 N.E.2d 1012

33 Mass.App.Ct. 433

COMMONWEALTH v. Americo SOUSA.

No. 92-P-187.

Appeals Court of Massachusetts Norfolk.

Argued Sept. 15, 1992.

Decided Oct. 16, 1992.

Morris M. Goldings, John F. Aylmer, Jr., Boston, with him, for defendant.

Stephanie Martin Glennon, Asst. Dist. Atty., for Com.

Before KASS, FINE and GILLERMAN, JJ.

FINE, Justice.

After a lengthy trial on three gambling-related charges, the defendant, general manager of Wonderland Greyhound Park in Revere (Wonderland), was convicted of one offense: using a telephone for the purpose of "accepting wagers or bets" on dog races in violation of G.L. c. 271, § 17A. ¹ He does not contend on appeal that there was insufficient evidence to justify the conviction. He contends only that the judge's instructions failed adequately to explain the requirements for conviction. We agree.

The charges arose out of a court-authorized wiretap of the home telephone of Abraham Sarkis, father of the owner of Wonderland. Numerous telephone conversations between Sarkis and others, including the defendant, were introduced in evidence. There was also evidence that Sarkis was a frequent visitor to Wonderland where he regularly placed lawful pari mutuel bets. At some point, due to illness, he was unable to attend the racetrack. On November 2, 1987, the defendant had the following telephone conversation with Sarkis:

THE DEFENDANT: "You want something?"

SARKIS: "Ah, one and one double."

THE DEFENDANT: "A what?"

SARKIS: "One and one."

THE DEFENDANT: "Okay, for how much?"

SARKIS: "Fifty, sixty make it."

THE DEFENDANT: "Six?"

SARKIS: "Sixty."

THE DEFENDANT: "Okay."

SARKIS: "Alright."

THE DEFENDANT: "Yup."

SARKIS: "Talk to ya later."

THE DEFENDANT: "Bye."

The defendant testified that, immediately after that telephone conversation, as a favor to Sarkis, he went to the betting window at Wonderland and paid for a ticket as requested on the telephone, and that later he gave the ticket to Sarkis.

On the basis of that evidence, the defendant sought by written requests to have the judge instruct the jury, among other things, that the Commonwealth had to prove that "a bet or wager was actually placed on the telephone and the transaction was completed during the telephone conversation." In his instructions, the judge discussed the meaning of "accepting wagers or bets," as used in the statute, in general and unobjectionable terms with the possible exception of the following. He said: "The word accepting means what it ordinarily means in its most common use. It means receiving. It means accommodating. It means knowingly taking into your possession a bet."

After the charge was completed, counsel for the defendant objected to the judge's failure to give the requested written instruction, and he requested a further instruction that "the prosecution must prove ... that a bet or wager was actually placed on the telephone and the transaction was completed during the telephone conversation." The judge refused, stating his view that the statute did not call for such an instruction. Referring to the evidence that the defendant was merely doing a favor for Sarkis as an accommodation, counsel also made an express objection to the instruction that equated "accepting" under the statute with "accommodating." Other objections by both parties were discussed during the conference at the bench. The judge then gave a supplemental instruction covering two of the subjects discussed. Instead of redefining the word "accepting" or discussing the word "accommodating," the judge, without referring to G.L. c. 271, § 17A, or the particular indictment to which the supplemental instruction pertained, defined the word "received." Although the judge may have intended by that instruction to convey to the jury the meaning of "accepted" in G.L. c. 271, § 17A, the word "received" appeared in a statute which was the subject of a different indictment against the defendant. Defense counsel registered no further objection on the point before the jury retired to consider its verdict.

We first consider whether the defendant may assign as error the inadequacy of the instructions, given his failure to object following the supplemental instruction. The failure to renew an objection to a charge after a trial judge has given further instructions in response to an objection, and after apparent acquiescence in the amended charge, prevents a party from raising on appeal the issue whether the instructions were adequate. See Mass.R.Crim.P. 24(b), 378 Mass. 895 (1979); Betty Corp. v. Commonwealth, 354 Mass. 312, 321, 237 N.E.2d 26 (1968); Commonwealth v. Barbosa, 399 Mass. 841, 844, 507 N.E.2d 694 (1987). In a criminal case, however, the possibility that there might be a substantial risk of a miscarriage of justice would remain open. See Commonwealth v. Levy, 29 Mass.App.Ct. 279, 283 n. 6, 559 N.E.2d 1255 (1990).

While it would have been better for counsel to have voiced a further objection before the jury retired, in the particular circumstances here, we do not think counsel failed in his obligations. The issue the defendant is seeking to raise on appeal had been presented to the judge in clear terms at least twice previously, and the judge had made his position known. There was hardly, in the circumstances, apparent acquiescence by defense counsel in the amended charge. Moreover, it was unclear that the supplemental instruction, defining a word different from the one to which the objection referred, and not mentioning the particular offense to which it related, were given in response to the objection. We conclude that the issue was adequately preserved for appellate review. We need not reach the question, therefore, whether the claimed error in the charge created a substantial risk of a miscarriage of justice.

We agree with the defendant that G.L. c. 271, § 17A, should not be interpreted to make it a criminal offense for an individual to agree on the telephone, at least if he does so without compensation or profit, to make a legal bet at a racetrack as an accommodation or favor to another. ² If the Commonwealth were correct in its interpretation of the statute as being sufficiently broad to include such conduct, then, regardless of where a telephone call is made or received and regardless of the relationship of the parties, if one, knowing the other will be attending the races, requests the other to place a legal bet for him, both would be caught within the statute's sweep. ³ So also, according to the terms of § 17A, would any person permitting his telephone to be used for such a conversation.

We see nothing in the language of the statute that compels such a result. "A bet is the hazard of money or property upon an incident by which one or both parties stand to lose or win by chance." Commonwealth v. Sullivan, 218 Mass. 281, 283, 105 N.E. 895 (1914). For one to have placed a "bet," he must have taken a risk on the uncertain outcome of a particular event and, depending on the outcome, he must be entitled to receive payment from another. "Accepting a bet" is the other side of the same coin. To "accept" a bet, one must take a risk on an uncertain event and, depending upon the outcome of the event, he must obligate himself to pay money to another person. Surely one may place or accept a completed bet over the telephone in violation of G.L. c. 271, § 17A. See, for example, Commonwealth v. Massod, 350 Mass. 745, 750, 217 N.E.2d 191 (1966). If the arrangement is a mere accommodation with regard to the placement of a bet at a pari mutuel window at a racetrack, however, no bet would be in existence unless and until the bet is actually placed at the pari mutuel windows. See State ex rel. Turner v. Drake, 242 N.W.2d 707, 709 (Iowa 1976). ⁴

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